Newsflash! Boneless chicken wings are not chicken wings. They are pieces of chicken breast slathered in a sauce. It’s reasonable that most consumers would know this. They would not expect “boneless chicken wings” to be actual chicken wings. It’s not possible to de-bone a chicken wing and be left with a big solid chunk of chicken. But the Ohio Supreme Court has gone a step further. They have declared, in a majority ruling, that boneless chicken wings should not be expected to be boneless.
This started when Michael Berkheimer was out to dinner with his wife at a wing restaurant in Hamilton, Ohio. He ordered his usual boneless chicken wings with parmesan garlic sauce. I don’t know why anyone would order boneless chicken wings at an actual wing joint, but one of the pieces felt weird going down.
A few days later Berkheimer was unable to swallow food and was running a fever. He went to the emergency room and doctors found that a long, thin bone was stuck in his throat. The bone was 3/8 inches long, having come from a little 1-inch nugget of chicken. The bone tore his esophagus and caused an infection. He had to undergo two separate operations.
Berkheimer, of course, sued the restaurant and the chicken supplier, claiming both were negligent. He had ordered a “boneless” wing and had suffered serious injuries from a bone!
What’s the main question here? Could a reasonable consumer expect to find a bone in a boneless chicken wing? Would a reasonable consumer be careful of the chicken containing bones?
The trial court threw out the case, saying that neither the restaurant nor the supplier had done anything wrong. Then, the appellate court upheld this decision. The case appeared before the Supreme Court of Ohio, and on July 25, 2024, in a 4-3 decision, the high court ruled that nope, the restaurant and the supplier did nothing wrong.
The author of the opinion, Justice Deter said the the trial court and the appellate court were right to throw out the case, stating that the restaurant and the chicken supplier bore no responsibility for serving Berkheimer a so-called boneless chicken wing that put him in the hospital with injuries that could have killed him.
If you think that is crazy, Deter went full-on crazy in saying that “no person would conclude that a restaurant’s use of the ‘boneless’ on a menu was the equivalent of the restaurant’s warranting of the absence of bones.’ In other words, Deter was saying that no reasonable consumer would think that the term boneless means “no bones.”
One of the dissenters, Justice Donnelly, said what we’re all thinking. “Actually, that is exactly what people would think. It is, not surprisingly, also what dictionaries say. ‘Boneless’ means without a bone.” He went on to say
The reasonable expectation that a person has when someone sells or serves him or her boneless chicken wings is that the chicken does not have bones in it…[The case] is incredibly straightforward. The issue is whether Berkheimer, who swallowed a bone while eating a boneless chicken wing, should be able to present to a jury his negligence claim against those who supplied or who prepared and served the wing or whether a judge may decide, as a matter of law, that Berkheimer cannot, under any circumstances, establish the defendant’s negligence.
There is no telling what this court might decide in the future. They just declared that boneless does not mean “without bones.” When the meaning of words holds no sway in the courts, we have what the dissenting opinion called “Utter jabberwocky.”
I may have spoken too fast in proclaiming, however, that no reasonable consumer would expect boneless chicken wings to be actual chicken wings. Buffalo Wild Wings has been fighting in court for over a year to prove that its so-called “boneless wings” are not just “chicken nuggets.”
A class action suit was filed in March 2023 claiming that the chain’s boneless wings are actually made of chicken breast and calling them boneless wings amounts to deceptive marketing. They are more akin to a chicken nugget, he said. Everyone else who read about this said, “No! You don’t say!”
Seizing on the Berkheimer case, lawyers for Buffalo Wild Wings immediately filed for a dismissal, saying the Ohio Supreme Court had already decided that boneless chicken wings should not be reasonably expected to be wings (or boneless).
Buffalo Wild Wings has never claimed on its menus that its Boneless Wings are wings, except in the name. Menus describe the item as “all white chicken meat that’s lightly breaded.” The Ohio Supreme Court did, in effect, decide in favor of the chain in this case, saying in the Berkheimer ruling:
Regarding the food item’s being called a ‘boneless wing,’ it is common sense that label was merely a description of the cooking style…A diner reading ‘boneless wings’ on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating ‘chicken fingers’ would know that he had not been served fingers.
While I think most readers will agree that “common sense” should tell you that boneless wings are not wings, if we agree that boneless no longer means “no bones” we may as well also agree that “tofu” means chicken.
